National Association of Evangelicals

On Monday, five religious organizations filed an amicus brief urging the Tenth Circuit Court of Appeals to uphold bans on same-sex couples getting married in Utah and Oklahoma. According to the Associated Press, the brief was written by lawyers for the Church of Jesus Christ of Latter Day Saints and the U.S. Conference of Catholic Bishops, and was joined by the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the Lutheran Church – Missouri Synod.

The thrust of the brief is to argue that there are sound social policy reasons to oppose marriage equality, and to attack the notion that opposition to gay couples getting married is grounded in anti-gay prejudice, or “animus.” Says the brief, “The accusation is false and offensive.”

“Our faith communities bear no ill will toward same-sex couples, but rather have marriage-affirming religious beliefs that merge with both practical experience and sociological fact to convince us that retaining the husband-wife marriage definition is essential.”

No ill will toward same-sex couples? Let’s review.

We can start with the Southern Baptists, who have officially declared that “homosexual conduct is always a gross moral and spiritual abomination for any person, whether male or female, under any circumstance, without exception” and that they even oppose businesses extending benefits to domestic partners. OK, to be fair, that was 1997. The SBC voted in 2003 to “call upon all judges and public officials to resist and oppose the legalization of same-sex unions,” and in 2008 called for constitutional amendment to prevent same-sex couples from getting married anywhere in the U.S.

Richard Land, who was for 25 years the voice of the Southern Baptists’ Ethics and Religious Liberty Commission until his retirement last fall, has said the Devil takes pleasure in the destructive homosexual lifestyle. In 2012, Land said, “God is already judging America and will judge her more harshly as we continue to move down this path toward sexual paganization.” A year earlier he accused gay rights activists of “child abuse” for “recruiting” children in elementary school.

Land’s retirement was expected to shift the ERLC’s tone; but the group still opposes ENDA, a proposed federal law to protect LGBT people from discrimination on the job.

Let’s see, who else opposes ENDA, domestic partnerships, civil unions, and marriage equality? That would be the US Conference of Catholic bishops. The bishops have said they oppose “unjust discrimination” against people with same-sex attractions, but they define the term “unjust” in a way that applies only to people who remain celibate. So if you are a gay couple and you are having sex, workplace discrimination against you is justified, as is a refusal to legally recognize your relationship.

A number of prominent U.S. bishops signed, and urged other Catholics to sign, the Manhattan Declaration, which compared liberals to Nazis. It declares conservatives’ positions on marriage to be "inviolable and non-negotiable," and pledges that conservatives will engage in civil disobedience, and may even need to prepare for martyrdom, in order to avoid recognizing legally married same-sex couples.

Let’s not forget Bishop Thomas Paprocki, from Springfield, Illinois, who told Catholics in 2012 that voting for the equality-supporting Democratic Party would put their eternal souls in jeopardy, and who responded to the passage of marriage equality in Illinois by conducting an exorcism.

The Mormon Church was a driving force in opposition to early marriage equality moves in Hawaii and Alaska and was crucial to the success of California’s Prop 8, providing tens of thousands of volunteers and a flood of cash. After a post-Prop-8 backlash from both inside and outside the church, LDS officials seemed to have abandoned the anti-marriage-equality crusade. The church says it supported Salt Lake City ordinances banning discrimination in housing and employment and has supported same-sex couples’ rights regarding “hospitalization and medical care, fair housing and employment rights, or probate rights” – sounds good – “so long as those do not infringe of the integrity of the traditional family or the constitutional rights of churches.” Hmm.

How about the National Association of Evangelicals? In 2008, Richard Cizik, the longtime public policy face of the NAE, was forced to resign after he publicly expressed support for civil unions.

Unlike the more progressive Evangelical Lutheran Church of America (ELCA), the more conservative Lutheran Church – Missouri Synod (LCMS) strongly opposes LGBT equality. In a statement after the Supreme Court overturned the Defense of Marriage Act, the church insisted, “Same-sex unions are contrary to God’s will, and gay marriage is, in the eyes of God, no marriage at all… no matter what the courts or legislatures may say.” The conservative Lutherans have backed HJR 6 in Indiana, which is attempting to add a ban on marriage equality to the state constitution.

In January, the LCMS announced it was entering formal discussions with the Ethiopian Evangelical Church Makane Yesus, which cut its longstanding ties with the ELCA last year over sexuality issues. The Ethiopian church was so disturbed by the ELCA’s pro-equality positions that it has declared its members may not share communion with ELCA members. Ethiopia’s churches and government, with the encouragement of American missionaries, have, in the words of a recent disturbing Newsweek article, “declared war on gay men.”

A symposium on the 20th anniversary of the Religious Freedom Restoration Act hosted by First Amendment advocate Charles Haynes at the Newseum in Washington D.C. on November 6 demonstrated one premise of People For the American Way Foundation’s 12 Rules for Mixing Religion and Politics – that people who support a core constitutional principle like religious liberty can disagree with how that principle should be applied. In recent years, religious conservatives have increasingly charged that those who disagree with them on this line-drawing are tyrannical enemies of faith and freedom. The RFRA anniversary was a reminder that, as Bill Moyers wrote in his introduction to the 12 Rules, “We can simultaneously share a strong commitment to religious liberty, while disagreeing over the application of that principle in a given circumstance.”

In fact, an almost unimaginably broad coalition worked to pass RFRA in 1993, including People For the American Way and the ACLU, the National Association of Evangelicals and Concerned Women for America, and a huge array of religious and civil rights groups. Also unimaginable in our political climate: RFRA passed the Senate 97-3 and the House unanimously by voice vote. But divisions within the coalition developed just a few years later and persist today.

RFRA was a response to the Supreme Court’s 1990 Smith decision in a case involving Native Americans who were denied unemployment benefits because they had violated state anti-drug laws through the sacramental use of peyote. The Court ruled that as long as the law in question was applied generally and not designed to target a particular religious practice, there was no real recourse for people whose exercise of religion was restricted. The decision toppled long-standing precedent and left advocates for religious liberty deeply concerned that religious minorities would suffer if there were no legal requirement for reasonable accommodation of their beliefs.

RFRA states that if a law places a substantial burden on a person’s exercise of religion, the government must demonstrate that the law is serving a compelling interest and does so in the least restrictive way. In 1997, the Supreme Court upheld RFRA as it applies to the federal government, but not to the states. Efforts to re-mobilize the RFRA coalition to pass a new law failed when civil rights advocates feared that a broad standard could be used to undermine state civil rights laws such as laws against discrimination based on sexual orientation.

Oliver Thomas, a co-chair of the original RFRA coalition, said it is not surprising that RFRA gets less popular as it gets older and its “majestic generalities” get applied in contentious cases. Organizations that were allies in passing RFRA are now on both sides of political and legal disagreements about how its standards should apply in a variety of situations, including the mandate under the Affordable Care Act that insurance plans include contraception, the proposed Employment Non Discrimination Act that just passed the Senate, and the advance of marriage equality. Even among ENDA’s backers there are disagreements about the nature and extent of religious exemptions in the bill.

The first part of the anniversary symposium, which included PFAW Foundation Board Member Rabbi David Saperstein, presented an insider view of RFRA’s history: the development of the RFRA coalition, the politics of writing the law and building congressional support. One historical tidbit: coalition members had to work hard to overcome objections raised by the U.S. Conference of Catholic Bishops, who feared the law might somehow give a weapon to their opponents on abortion rights issues. Rep. Henry Hyde told coalition members that the bill would not move until they addressed the bishops’ concerns.

That history is particularly interesting given that conservative Catholics are now using RFRA to challenge the contraception mandate. A discussion of the contraception mandate in the Affordable Care Act featured Lori Windham from the Becket Fund for Religious Liberty, which represents a number of companies, business owners, and organizations challenging the mandate, and Dan Mach of the ACLU Program on Freedom of Religion and Belief, which argues that the contraception requirement does not substantially burden the religious freedom of business owners, and that the Obama administration’s accommodation for religious organizations is more than sufficient. Mach noted that while religious liberty is fundamental, it is not absolute, and should not be used to infringe the rights of others.

Another issue discussed by the panelists was whether RFRA protects for-profit corporations – not the owners, but the corporation itself as an entity. Some of the panelists discussing RFRA’s history agreed that conversation about violations of religious liberty were focused on individual people, not for-profit corporations, though some said the debate on RFRA and related laws assumed that companies would be covered. The Becket Fund’s Windham made a case for including such corporations with RFRA’s protections, saying constitutional rights shouldn’t depend on your tax status. The Constitutional Accountability Center has argued otherwise.

Doug Laycock, a University of Virginia law professor, is among the most prominent legal scholars on religious liberty. He finds himself positioned on differing sides in various culture war battles. Just a day before the anniversary symposium, Laycock argued before the Supreme Court, representing people who are challenging the practice of sectarian prayer at city council meetings in the Town of Greece case. In that case he stood with advocates of strong church-state separation. On other issues, such as whether a business owner should have the right not to provide services related to a same-sex wedding, he stands with religious conservatives who are pushing for broad religious exemptions to anti-discrimination laws.

Laycock dismissed right-wing charges that the Obama administration is waging a war on religious liberty. He said the administration has gone to “remarkable lengths” to accommodate religious organizations on the contraception mandate and said he doubts that opponents will be able to convince judges that the current rule creates a substantial burden under RFRA. Obviously, the Becket Fund and other Religious Right legal groups and their clients strongly disagree. Later this month the Supreme Court will consider whether to accept for consideration four cases involving for-profit companies challenging the mandate. Cases involving non-profits have not advanced as far.

A panel on other current controversies placed them in the context of increasing religious pluralism in America, including the rapid growth of “nones” – people who claim to religious affiliation. One panelist noted that religious and civil rights groups can still find common ground in opposition to laws targeting religious minorities, as many did in opposition to Oklahoma’s anti-Sharia law, which was found unconstitutional earlier this year. But it should be noted that some Religious Right groups have in fact backed such laws, and some opposed the building of the Islamic community center in New York that was deceptively dubbed the “Ground Zero Mosque.”

Laycock worries that culture war battles are weakening Americans’ commitment to religious liberty. He faults conservative religious groups for continuing to fight legal marriage equality for same-sex couples. But he also believes LGBT rights advocates should be more willing to accept broad religious exemptions. Laycock said that conservatives’ dug-in resistance to equality diminishes the incentives for gay-rights activists to accommodate them. The challenge, as he sees it: on issues of sexual morality, one side views as a grave evil what the other side views as a fundamental right. In that climate, tens of millions of Americans believe that “religious liberty” empowers their enemies, and neither side is willing to embrace what Laycock considers “live and let live” solutions.

Marc Stern of the American Jewish Committee agreed with Laycock’s concerns about a winner-take-all approach to religious freedom issues, which he said reflects the broader political climate. But the courts will continue to undertake the balancing act required by the Constitution and by RFRA when constitutional principles come into tension. And, he said, once the courts work through issues regarding contraception and LGBT equality, we will all still need to grapple more with larger cultural and legal questions, such as those involving the growing number of nonbelievers who are reshaping America’s religious landscape.

The anniversary symposium, “Restored or Endangered? The State of Religious Freedom,” was sponsored by The Baptist Joint Committee for Religious Liberty, Christian Legal Society, American Jewish Committee, Religious Action Center of Reform Judaism, Union of Orthodox Jewish Congregations, Becket Fund for Religious Liberty and Religious Freedom Center of the Newseum Institute.